BILL ANALYSIS
AB 1723
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1723 (Lieu and Emmerson)
As Amended August 2, 2010
Majority vote
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|ASSEMBLY: |73-0 |(April 22, |SENATE: |31-0 |(August 11, |
| | |2010) | | |2010) |
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Original Committee Reference: JUD.
SUMMARY : Creates a new "forfeiture by wrongdoing" hearsay
exception modeled after the federal rules and expands the
definition of "unavailable as a witness" for purposes of
admitting hearsay evidence. Specifically, this bill :
1)Expands the statutory definition of "unavailable as a witness"
to include a declarant who, when called upon as a witness,
persistently refuses to testify on the subject matter of the
declarant's out-of-court statement despite having been found
in contempt of court for refusal to testify.
2)Provides that evidence of a statement is not made inadmissible
by the hearsay rule if the statement is offered against a
party that has engaged or aided and abetted in wrongdoing that
was intended to, and did, procure the unavailability of the
declarant as a witness. Requires the party seeking to
introduce a statement to establish the essential elements at a
foundational hearing, as specified, outside of the presence of
the jury.
3)Permits the use of hearsay evidence, including the contested
statement, at the foundational hearing. Specifies, however,
that a finding that a statement is admissible against a
wrongdoer shall not be based solely on the unconfronted
hearsay statement of the unavailable declarant, but must be
supported by independent corroborative evidence. Specifies,
additionally, that a judge may take into account whether the
statement is trustworthy and reliable.
4)Provides that the provisions of this bill shall apply to any
civil, criminal, or juvenile case or proceeding initiated or
pending as of January 1, 2011.
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5)Provides that the provision creating the forfeiture by
wrongdoing exception shall sunset on January 1, 2016, unless a
later enacted statute, that is enacted before January 1, 2016,
deletes or extends that date. Specifies that if this
provision is repealed, that fact that it is repealed should it
occur, shall not be deemed to give rise to any ground for an
appeal or a postverdict challenge based on its use in a
criminal or juvenile case or proceeding before January 1,
2016.
The Senate amendments :
1)
Modify the
definition
of
"unavailabl
e as a
witness"
to specify
that
persistent
refusal
constitutes
unavailabil
ity if the
refusal
persists
despite a
finding of
contempt
for
refusal to
testify.
2)
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Change the
requirement
that the
person
against
whom the
statement
is offered
from a
requirement
that the
person
must have
engaged in
"or
knowingly
approved
of" the
wrongdoing
to engaged
in "or
aided and
abetted"
the
wrongdoing.
3)
Specify
that a
judge may
take into
account
the
trustworthi
ness and
reliability
of a
statement
when
deciding
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whether or
not to
admit a
hearsay
statement
under the
terms of
this bill.
4)
Specify
that
repeal
according
to the
sunset
provision
of this
bill will
not be
deemed to
give rise
to a
postverdict
challenge
for a case
or
proceeding
arising
before the
sunset
date.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : According to the sponsor, the California District
Attorneys Association (CDAA), "witnesses to or victims of crimes
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are sometimes intimidated or killed in order to prevent them
from testifying." For example, a gang member on trial for
murder may command or encourage fellow gang members to kill a
likely witness, or at least threaten or intimidate that likely
witness so that he or she does not testify. Persons who commit
domestic violence, it is claimed, often threaten victims with
retaliation should they testify against the abuser. Often times
these witnesses or victims have made statements in other
contexts, including statements to neighbors, police, or even
grand juries, which could provide relevant evidence at trial.
However, CDAA claims, if the defendant actually succeeds in
making the person unavailable as a witness - either by killing,
kidnapping, or intimidating - existing law does not provide a
practical way by which those prior out-of-court statements can
be introduced.
To address what it sees as the inadequacies of existing law, the
CDAA seeks a broader forfeiture by wrongdoing exception that
would apply to any kind of wrongdoing that is intended to, and
does in fact, procure the unavailability of a witness. Most
importantly, this generalized wrongdoing would include
intimidation of a witness - a problem that CDAA claims is
especially problematic in crimes involving domestic violence and
criminal gang activity.
In order to achieve this, this bill would make two substantive
changes to the existing provisions of the Evidence Code: 1) it
extends the definition of "unavailable as a witness;" and, 2) it
creates a new forfeiture by wrongdoing hearsay exception.
First, this bill would expand the definition of "unavailable as
a witness" in Evidence Code Section 240 to include "persistent
refusal" to testify despite a finding of contempt for refusal to
testify. CDAA claims that expanding the definition in this way
is especially important when a potential witness has been
subjected to threats and intimidation and is too frightened to
testify. In this case, if the witness has made out-of-court
statements - including statements before a grand jury or in a
police report - those statements can be used if the prosecution
can prove that the defendant was the source of the threats and
intimidation.
Second, this bill would create an alternative to the existing
Evidence Code Section 1350, which only applies if the witness is
killed or kidnapped and requires that the hearsay statement is
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one that has been memorialized in a tape recording or a
notarized written statement, among other requirements. The
hearsay exception proposed by this bill, on the other hand, is
more general and permissive. Most notably, the new exception
would differ from Section 1350 in that it would apply not only
to killing and kidnapping, but to any wrongdoing that was
intended to, and did, procure the unavailability of the witness.
This bill also sets forth how the court shall determine, at a
foundational hearing, whether the person against whom the
statement is to be used either engaged in or aided or abetted
the wrongdoing.
Recognizing that this bill creates an unusual and somewhat
unprecedented expansion of hearsay exceptions in the California
Evidence Code, the author has agreed to have the legislation
sunset as of January 1, 2016, so that the Legislature can
revisit the issue at that time and evaluate the equities of this
quite substantial change to California evidence law.
According to supporters, California should follow the lead of
the Federal Rules and a growing number of states and adopt a
workable and usable forfeiture by wrongdoing hearsay exception,
and it should expand the definition of "unavailability" to
include a witness who persistently refuses to testify.
Supporters contend that criminal defendants sometimes kill,
intimidate, or otherwise engage in wrongdoing in order to
eliminate potential witnesses against them, or they encourage
others to engage in such wrongdoing on their behalf. While
Evidence Code Section 1350 attempts to address these situations,
it applies to such a narrow set of circumstances and sets such
stringent requirements that prosecutors have given up trying to
use it. In addition, CDAA claims that because Section 1350 only
applies where a witness has been killed or kidnapped, it does
nothing to address the more common problem of witness
intimidation. The CDAA claims that intimidation can be present
in any criminal case, but it is especially prevalent in domestic
violence and gang-related activity.
Opponents contend that both provisions of this bill - amending
the definition of "unavailability" and creating a new hearsay
exception - will unduly expand the use of inherently unreliable
hearsay evidence and, more than likely than not, is
unconstitutional under the Sixth Amendment's "confrontation
clause." Opponents also express concern about the provision in
the bill that permits the use of hearsay, included the contested
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statement, at the foundational hearing. The author and sponsor
respond that hearsay is permitted at the foundational hearing
under the federal rules and that they have added a sunset in
order to permit evaluation of this aspect, among others, of the
legislation.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0005487